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New Federal Anti-SLAPP Legislation Introduced: A Good Start

Recently, Senator Jon Kyl (R-AZ) introduced a new federal anti-SLAPP bill called the Free Speech Act of 2012. While the bill doesn’t go nearly far enough, EFF is encouraged to see that Congress is showing renewed interested in passing legislation to prevent so called “Strategic Lawsuits Against Public Participation” (SLAPP) that attempt to censor and chill First Amendment protected speech.

Anti-SLAPP laws are intended to stop defamation lawsuits—frequently filed by plaintiffs with deep pockets—that have little to no chance of winning, yet are aimed at pressuring the target into settling for fear of expensive litigation. Generally, the laws allow defendants who are engaged in clearly protected speech to dismiss these lawsuits early on—and in some cases, force the plaintiff to pay legal costs if the suit is frivolous—hopefully discouraging litigants from ever filing them in the first place.

Under the measure, the media could file a motion to dismiss a lawsuit that “arises in whole or in part” from reporting “on a matter of public concern or that relates to a public official or figure.”

While this provision sounds like a welcome addition to the law, unfortunately it is written far too narrowly. The provision only applies to “a representative of the news media,” and may not include bloggers, citizens journalists or other commentators on the Internet who need this protection the most.

The goal of the bil, however, is an important one, as Sen. Kyl stated during the bill's introduction. “The Free Press Act of 2012 responds to a number of recent incidents in which defamation lawsuits have been used to try to squelch criticism of particular groups and individuals,” he said.

Indeed, there have been a number of incidents in recent months where wealthy individuals have tried to combat criticism by filing frivolous lawsuits. For example, EFF successfully defended Matthew Inman, the founder of the popular webcomic The Oatmeal, after he was sued by the website FunnyJunk and lawyer Charles Carreon over baseless allegations that critical webcomics were defamatory.

Carreon’s suit could have been promptly dismissed if a strong federal anti-SLAPP statute existed. But because of Kyl’s bill’s narrow focus, Inman may not have enjoyed its protections because he is not part of the “news media.” Fortunately, Inman could have potentially used California’s anti-SLAPP statute to protect himself if Carreon had not dropped the case.

Others, however, aren’t so lucky. Currently, only 28 states have anti-SLAPP laws—some weaker than others—leaving many with little or no protection. For example, Idaho-based Jody May-Chang, an independent LGBT blogger, was threatened by billionaire Frank Vandersloot over a four-year-old blog post that relied on publicly available information. May-Chang bravely stood up to Vandersloot and refused to take her post down, but multiple bloggers in Idaho before her were forced into silence after similar threats from Vandersloot. It’s unclear whether Kyl’s new bill would have protected these Idaho bloggers either.

Sen. Kyl’s legislation clearly does not go far enough, but it is a starting point for robust, bipartisan legislation that would protect bloggers from intimidation. It also includes a broader special motion to quash subpoenas for personally identifying information if the statements in questions relate to a matter of public concern or to a public official or public figure, which would substantively strengthen the rights of anonymous or pseudonymous speakers online.

Another anti-SLAPP bill with stonger protections being discussed in Congress right now is the PETITION Act. Go here to EFF’s Action Center to send your representative a message encouraging them to support anti-SLAPP legislation, such as the PETITION Act.